North Carolina’s Implied Consent Laws: Refusing a DWI Blood or Breath Test

Drivers who are lawfully arrested for driving while impaired and refuse a breathalyzer or blood alcohol test face license suspension.

North Carolina’s “implied consent” law requires all drivers who are lawfully arrested for driving while impaired (DWI) to submit to chemical testing to determine blood alcohol concentration (BAC) or the amount of drugs in the person’s system.

Implied Consent Advisement. Drivers who are arrested for DWI are generally taken to a local police department for chemical testing of their blood or breath. The arresting officer must advise the driver of certain rights and potential consequences. This advisement must include informing the driver:

  • of the right to refuse testing, but that such a refusal will result in immediate license revocation of at least one year

  • that a test result showing a BAC of .08% or higher will result in a license revocation of at least 30 days

  • of the right to contact an attorney and have a witness present to observe the testing procedures (provided that consultation with counsel and selecting a witness doesn’t delay testing more than 30 minutes), and

  • of the right to seek an independent alcohol test—in addition to that ordered by the officer—upon release.

After giving this advisement, the arresting officer will typically ask the driver to sign a form confirming he or she was advised and understood.

Breath Testing. An officer who stops a person on suspicion of impaired driving will almost always ask the person to take a roadside portable breath test (PBT) (also called an “alcohol screening test”) prior to making an arrest. North Carolina law requires motorists to submit to the PBT if the officer has reasonable suspicion of impaired driving. Post-arrest, the officer might ask the driver to take a second, more accurate breath test at the police station. Prior to giving this test, the officer is supposed to give the driver the advisement described above. The results of the second breath test are what prosecutors would normally use in court to prove a DWI.

Blood Testing. Officers also have the option of requesting that a driver take a blood alcohol test in lieu of or in addition to a breath test. Prior to giving such a test, the officer is supposed to give the implied consent advisement. If the driver refuses the test or is unconscious, law enforcement can require a blood sample be taken from the driver only with a search warrant. (Drivers who are ultimately convicted of DWI based on a blood test may end up having to pay a $600 lab fee for the testing.)

(N.C. Gen. Stat. Ann. §§ 20-16.2, 20-16.3, 20-139.1 (2017).)

Consequences of Refusing Chemical Testing

A North Carolina driver who’s charged with an implied consent offense faces an immediate 30-day license revocation. An additional one-year revocation is imposed after an opportunity for a hearing (assuming the driver either doesn’t request or loses at the hearing). Even if the driver is ultimately found not guilty of DWI in criminal court, the one-year revocation for refusing chemical testing remains in effect.

After completing six months of a refusal suspension, the driver can petition the court for a limited driving privilege for driving to and from places like school and work.

Although criminal penalties aren’t imposed for chemical test refusals, the fact that a driver refused testing is generally admissible in criminal court to prove a DWI. So, the State may still be able to prove its case even without the results of a chemical test indicating the driver’s blood alcohol content.

(N.C. Gen. Stat. Ann. §§ 20-16.2, 20-16.5 (2017).)

Getting Legal Help

The consequences of DWI are serious. If you’ve been arrested or charged for DWI, you should talk to an experienced DWI attorney right away. A DWI attorney in your area can help you understand how the law applies to the facts of your case and advise you on what to do next. Depending on the circumstances of your case, an attorney might be able to negotiate a plea bargain for a lesser charge, such as “reckless driving.”

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